26/11/2013

Journalists and users of social media are urged to exercise care and restraint in any additional reporting or commenting on the following statement. This is because they may risk committing a contempt of court as strict liability contempt rules apply.

Alison Saunders, Director of Public Prosecutions, said:

We have considered all of the evidence in this case, including previously unseen, unedited CCTV footage from Downing Street, not referred to by the media. Taking it all into account, including the accounts of the officer at the gate of Downing Street and that of Andrew Mitchell MP before, during and after the incident, we have found that there is insufficient evidence to show that the officer at the gate lied in his account. The CPS has also found that there is insufficient evidence to show that Mr Mitchell was the victim of a conspiracy of misinformation.

With insufficient evidence to show that the officer at the gate lied in his account, we must consider other matters, as set out below, on that basis.

I have, however, authorised one officer to be charged with one count of misconduct in public office. I will set out the decision making below.

The evidence

The evidence has been reviewed in accordance with the Code for Crown Prosecutors by a Specialist Prosecutor in the Special Crime & Counter Terrorism Division under the personal supervision of Malcolm McHaffie, the Deputy Head of Division. I have in addition sought the advice of an experienced Queen’s Counsel.

The allegations made by Mr Mitchell led to an extensive police investigation involving hundreds of witness statements from police and from staff at Downing Street.

Previously unseen and unedited CCTV evidence has been considered very carefully. In addition there has been a detailed enquiry into emails, text messages, social messaging and telephone contact between numerous police officers and members of the public. The locations of mobile telephones have been analysed using cell site technology. We have considered evidence in relation to 14 individuals including 10 police officers, a member of the media and three members of the public.

Downing Street is a high-risk target that is guarded at all times by armed police officers and protected by two pairs of main security gates. A legal order made in 2008 because of the fear of terrorist attack means that no-one may use the street unless they are authorised or directed by a police officer. Officers were instructed only to open the main gates for motor vehicles and there was a publicised policy to that effect.

The evidence shows that on 19 September 2012 there was an incident at the gates of Downing Street between Mr Mitchell and an armed police officer who, in accordance with his instructions, declined to allow Mr Mitchell to exit on his bicycle via the two pairs of main security gates, which were closed. The officer instead directed Mr Mitchell to a nearby large pedestrian gate which he opened for Mr Mitchell.

Both Mr Mitchell and the gate officer describe bad language from Mr Mitchell.

Although the exact wording of what was said is disputed, both the officer and Mr Mitchell say that the officer warned Mr Mitchell for swearing and Mr Mitchell said he would pursue the matter the next day.

There are no independent accounts of what was said.

The evidence shows that after the incident at the gate the officer immediately told other officers there what had happened; he then made a written note and telephoned a superior officer to inform him. About an hour and a half later, once back at base, he compiled an email about the incident which he sent to his managers and colleagues. The email is what has previously been described as the police ‘log’.

Much of the press reporting to date has assumed that the CCTV recordings show that the gate officer lied about the words used during the incident. The CCTV footage that has been aired publicly was edited and did not show the full picture.

We have been supplied with previously unseen and unedited footage of the incident from five different cameras. The CCTV footage does not determine the issue completely as it could be consistent with either the accounts of the officer on the gate or Mr Mitchell. It is clear from the footage that there was sufficient time for the words to have been said either as described by the gate officer or as described by Mr Mitchell, and this has been confirmed by an expert. The fact that an expert has confirmed what is possible does not of itself determine the issue. Both the officer and Mr Mitchell agree that the officer warned him about swearing and that Mr Mitchell made a further remark on leaving. There is no sound recording and the faces of the officer and Mr Mitchell cannot be seen sufficiently clearly. It does show that there are a small number of members of the public present immediately in front of the gate at the relevant time, but what cannot be seen is how many people were immediately off camera but in the vicinity, at least some of whom then quickly came into view. This is consistent with the officer’s account that several members of the public were present. No officer ever mentioned “crowds” being present – this was first mentioned in Channel 4 News/Dispatches programmes in December 2012 and February 2013 – which showed edited footage that was less than clear in a number of regards.

Our determination in relation to the incident also involved careful consideration of evidence concerning conduct and communications by officers and Mr Mitchell both before and after the incident, including the fact that Mr Mitchell’s account has varied since the incident.

The claims made in the Sunday Times about a whistle-blower were first made to the police by David Davis MP and Mr Mitchell. They have declined to assist the police by naming them.

Our conclusions

Having carefully considered the evidence in accordance with the Code for Crown Prosecutors we have reached the following conclusions:

1) Events at the gate

There is insufficient evidence to say that the police officer on the gate lied (offence considered: misconduct in public office).

There is insufficient evidence to prove that any officer, alone or with any other officer(s), fabricated a false allegation against Mr Mitchell (offence considered: misconduct in public office).

There is insufficient evidence to prove a criminal conspiracy (offence considered: conspiracy to commit misconduct in public office).

2) Information leaks

a) It is clear that information was leaked when an officer, who was unconnected to the incident, sent a copy of the gate officer’s email to the media. There is no evidence that this officer requested or received any payment or reward.

We have carefully considered all the evidence in accordance with the Code for Crown Prosecutors and the CPS Guidance for prosecutors on assessing the public interest in cases affecting the media.

We considered whether there is sufficient evidence to give rise to a realistic prospect of conviction for either a breach of the Data Protection Act s55 or misconduct in public office.

This type of conduct raises issues in relation to the right to freedom of expression, including the right to freely impart and receive information, and these are important rights enshrined in our law. In all the circumstances of this case we have concluded that a jury is likely to decide that it was in the public interest for the events at the gate to be made public and it therefore follows that there is insufficient evidence to prosecute any suspect in relation to this leak.

b) In two instances there is evidence to show that false information was sent, but not by police officers.

There is information, but no admissible evidence, which suggests that an officer’s partner contacted the media, introducing the word “morons” into the press. However, that person is not a public officer and therefore cannot be considered for an offence of misconduct in public office. There is no evidence that any officer has ever claimed that Mr Mitchell used the word “moron”.

In the second instance an unconnected member of the public sent an email to the chairman of the Conservative Party and this was later passed to Mr Mitchell. The email was sent six days after the incident, on 25 September, when the matter was already public. The correspondent claimed to have witnessed and filmed the incident and said that the word “pleb” was not used. The evidence is clear that this email is a fabrication and was in fact based on media coverage, but again, that person is not a public officer and cannot be considered for an offence of misconduct in public office.

c) In addition, two officers were considered for offences of perverting the course of justice in terms of the statements they provided to this investigation, but there was insufficient evidence for a realistic prospect of conviction.

The conclusions we have reached do not in any way condone the actions of those involved in this case.

The question of whether proceedings under police regulations should follow against any officer is a matter for the Independent Police Complaints Commission (IPCC) and Metropolitan Police Service. The fact that an individual has not been charged with a criminal offence does not prevent such proceedings.

3) Criminal proceedings

We have also received evidence in relation to PC Keith Wallis who sent an email to the deputy chief whip, John Randall who was his MP, saying that he had witnessed the incident.

We have decided, having carefully considered the evidence in accordance with the Code for Crown Prosecutors, that there is sufficient evidence to charge PC Wallis with misconduct in a public office and that it is in the public interest to do so. I should make it clear the misconduct allegation relates to evidence that PC Wallis falsely claimed to have witnessed the incident, not to how the incident was described in his account.

PC Keith Wallis has been charged and is required to attend Westminster Magistrates’ Court on 16 December 2013.

PC Keith Wallis now stands accused of a criminal offence and is entitled to a fair trial. Care should be taken that nothing is reported which may prejudice his trial.

STATEMENT OF OFFENCE

MISCONDUCT IN PUBLIC OFFICE, contrary to Common Law.

PARTICULARS OF OFFENCE

Keith Wallis between the 19th day of September 2012 and 16th December 2012 wilfully and without reasonable excuse or justification misconducted himself when the holder of a public office, namely a police constable in the Metropolitan Police Service, in that he falsely claimed to have witnessed an incident dated 19th September 2012 and arranged for his nephew to support his false claims.